Whistleblowing and Compliance in the Judicial Hierarchy

Abstract

One way that principals can overcome the problem of informational asymmetries in hierarchical organizations is to enable whistleblowing. We evaluate how whistleblowing influences compliance in the judicial hierarchy. We present a formal model in which a potential whistleblower may, at some cost, signal noncompliance by a lower court to a higher court. A key insight of the model is that whistleblowing is most informative when it is rare. While the presence of a whistleblower can increase compliance by lower courts, beyond a certain point blowing the whistle is counterproductive and actually reduces compliance. Moreover, a whistleblower who is a "perfect ally" of the higher court (in terms of preferences) blows the whistle too often. Our model shows an important connection between the frequency of whistleblowing and the effectiveness of whistleblowing as a threat to induce compliance in hierarchical organizations.

Getting Their Way: Bias and Deference to Trial Courts

“…Existing theories have demonstrated that a lower court's private information about a case's facts creates an incentive for an upper court to defer (e.g., Beim 2017;Beim, Hirsch, and Kastellec 2014;Cameron, Segal, and Songer 2000;Carrubba and Clark 2012;Clark and Carrubba 2012;Lax 2012). However, the particular way that fact finding is conceptualized (and therefore modeled) matters for understanding both the scope and form of this deference (see Stephenson 2011).…”

“…Second, this article adds to recent models focused on the role of opinion writing in managing hierarchical relationships between courts, and between courts and legislatures (e.g., Beim, Hirsch, and Kastellec 2014;Clark and Carrubba 2012;Staton and Vanberg 2008). Clark and Carrubba (2012) conceive of opinions as consisting of legal rules and persuasive quality.…”

Collusion, Blackmail and Whistle-Blowing

“…More recently, Ting (2008) shows that the informational advantages of whistle-blowing might be outweighed by the costs of employees exerting less effort. In a related paper, Beim et al (2014) show that too much whistle-blowing decreases the informativeness of such disclosure and might yield more wrongdoing in the first place. Relatedly, Austen-Smith and Feddersen (2009) analyze the managerial choice of whistleblowing practises for providing incentives to report violations and committing to fix such violations internally when they are privately reported.…”

Separate Opinion Writing Under Mandatory Appellate Jurisdiction: Three‐Judge District Court Panels and the Voting Rights Act

“…Although dissenting opinions at the Supreme Court have become more common (Corley et al 2013), unanimity is a powerful norm at the U.S. Courts of Appeals (Cross 2007;Kim 2009). Dissenters are argued to be whistleblowers in the federal judicial hierarchy, signaling potential deviation from Supreme Court or circuit precedent or procedure (Beim et al 2014a;Blackstone & Collins 2014;Cross & Tiller 1998;Hazelton et al 2016). The presence of a dissent has long been thought to be a factor in decisions on certiorari (Tanenhaus et al 1963;Ulmer et al 1972).…”